The Supreme Court on Friday said that it would hear the bail petition filed by Trinamool Congress Spokesperson Saket Gokhale, challenging the Gujarat High Court order denying him bail in a case related to alleged misappropriation of funds collected through crowdfunding, after the Holi break.

The Bench of Justice B.R. Gavai and Justice Vikram Nath told Senior Advocate Abhishek Manu Singhvi, representing Gokhale, that the case got listed in the supplementary list very late on Tuesday night and they did not have time to go through it.

The Bench assured that they would hear the petition immediately after vacation and listed it for hearing on March 13.

An FIR was registered against Gokhale in December last year, based on a complaint filed by a woman who claimed to have donated Rs 500 to the AITC leader through online mode (Razorpay). 

It was alleged that Gokhale collected over Rs 72 lakh from more than 1,700 persons through a crowdfunding platform ‘our democracy’ and used the amount for personal use, thus leading to misappropriation of funds.

On January 6, the court of Additional Chief Metropolitan Magistrate Manish Chauhan in Ahmedabad, Gujarat denied bail to Gokhale and sent him to judicial custody.

The ACMM noted that a case for cheating, criminal breach of trust and forgery had been registered against the AITC leader under the Indian Penal Code for misuse of money collected via crowdfunding.

Gokhale challenged the verdict in the High Court, which upheld the trial court order on the grounds that there was a prima facie case that the amounts collected in the name of welfare were used by the accused for his personal benefit.

The order was passed by the Single-Judge Bench of Justice Samir J. Dave.

Gokhale contended that he was arrested by the Gujarat police on December 6, 2022 after he tweeted that the Prime Minister’s visit to Morbi bridge accident site cost the exchequer an amount of Rs 30 crore. He alleged that it was a case of ‘political vendetta’.

The Ahmedabad Cyber Crime Branch on December 30, 2022 had arrested Gokhale from Delhi. This was Gokhale’s third arrest in recent times by the Gujarat police.

Earlier, he was arrested on December 6, 2022 for his tweet which stated that Prime Minister Narendra Modi’s visit to Morbi after the bridge collapse, had cost Rs 30 crore to the exchequer.

On the basis of this tweet, an FIR was lodged, whereby he was booked under Sections 469 (forgery to harm reputation), 471 (using as genuine a forged document/electronic record), 501 (printing defamatory matter), and 505(b) (statements conducing to public mischief) of the Indian Penal Code.

Gokhale got bail from an Ahmedabad court after his remand ended on December 8. However, the TMC leader was again arrested the same day by the Morbi police for the same offence registered there.  

On December 9 last year, the Court granted him bail and he was released before being arrested in the present case.

The Supreme Court on Friday dismissed a petition filed by Suvendu Adhikari, Leader of Opposition in the West Bengal Legislative Assembly, challenging the decision of the West Bengal Assembly Speaker not to disqualify MLA Mukul Roy.

The Bench of Justice Dinesh Maheshwari and Justice Sanjay Kumar came down heavily on Adhikari for moving the Supreme Court, instead of filing a petition in the Calcutta High Court.

The Apex Court said it did not see any reason to interfere and expressed its reservation on the petitioner for ‘bypassing’ the High Court.  

The Bench further noted that Adhikari had approached the Apex Court earlier too and was told to move the High Court.

Stating that there was a system to follow, the top court of the country told the petitioner to withdraw the plea.

Appearing for Adhikari, Senior Advocate Gopal Sankaranarayanan contended that the plea was filed since the case in which the Apex Court had earlier directed the High Court to hear the matter has been pending before the Supreme Court.

However, the top court of the country suggested that the plea be moved before the Calcutta High Court.

Also representing Adhikari, Senior Advocate C.S. Vaidyanathan chose to withdraw the plea, which was filed through Advocate Surjendu Sankar Das.

On June 8 last year, Speaker Biman Banerjee had ruled that Roy was a Bharatiya Janata Party (BJP) MLA, while Adhikari and BJP had claimed that he defected to the Trinamool Congress (AITC) after declaration of results to the 2021 Assembly elections. Adhikari challenged this decision of the Speaker before the Apex Court.

The Delhi High Court on Thursday postponed hearing to December 7 on the multi-crore cattle smuggling case in West Bengal involving All India Trinamool Congress leader Anubrata Mondal, after the AITC leader’s lawyer asked for postponement.

Earlier, the Enforcement Directorate had filed an application in the Rouse Avenue Court of New Delhi for transit remand of Mondal and permission to bring him to the national capital for questioning on charges under the Prevention of Money Laundering Act (PMLA).

This petition by ED was challenged by Mondal in the Delhi High Court  

The Counsel representing Mondal moved a petition in the High Court this morning, requesting for postponement of the hearing till December 7, as the main Counsel in the matter and Senior Advocate Kapil Sibal was busy with his prior engagements in another court.

The Single-Judge Bench of Anup Jairam Bhambhani then asked the Counsel representing ED for his opinion in the matter. As the latter did not raise any objection, the hearing was postponed to December 7.

The AITC leader is presently under judicial custody at the Asansol Special Correctional Home in West Burdwan district. 

Mondal had filed two separate petitions at the Calcutta High Court, one seeking bail and another against the ED’s plea seeking permission to take him to New Delhi.

The Supreme Court on Thursday decided to hear tomorrow, the petition filed by All India Trinamool Congress, challenging the Central government’s decision to extend the tenure of current Director of Enforcement Directorate (ED) Sanjay Kumar Mishra.

A Bench comprising Chief Justice of India N.V. Ramana, Justice Krishna Murari and Justice Hima Kohli had agreed to list the case on July 11.

When the issue was mentioned by Senior Advocate Basava Prabhu Patil before the CJI today, Justice Ramana agreed to list it tomorrow.

As per the plea claimed by AITC spokesperson Saket Gokhale, the extension was invalid under Section 25 of the Central Vigilance Commission Act and in gross violation of the top court’s September 2021 judgement in Common Cause vs Union of India, wherein it was held that no further extension of tenure shall be granted to the incumbent Director of the ED.

The Supreme Court had, in its 2021 verdict, had affirmed an earlier verdict of the Central government dated November 13, 2020, which made retrospective revisions to Mishra’s appointment order, increasing his term from two to three years.

S.K. Mishra, who was first appointed as the ED Director for a two-year term in November, 2018, had reached the retirement age of 60 in May, 2020. His two-year term was to expire in November 2020.

The Central Government, however, issued an office order on November 13, 2020,
stating that the President had modified the 2018 order to the effect that the time of two years was changed to three years.

The decision was challenged in the Supreme Court by an NGO called Common Cause.

A Bench comprising Justice L. Nageswara Rao and Justice B.R. Gavai had held in September 2021 that the Central government had powers to make retrospective changes, but it should be done only in the rarest of rare cases.

The tenure of Mishra, which was set to expire, cannot be extended further, the top court had observed then.

Following the Apex Court verdict of 2021, the Centre had brought in an ordinance amending the Central Vigilance Commission (CVC) Act, empowering itself to extend the tenure of the ED Director up to five years.

The AITC petition has challenged this decision before the Apex Court. A similar petition filed by Congress leader Jaya Thakur, against the same decision of the Centre, is also pending before the Supreme Court.

The Supreme Court agrees to list a plea by All India Trinamool Congress (TMC)  MP Abhishek Banerjee challenging the order of Delhi High Court refusing to quash summons issued to him by Enforcement Directorate (ED) in money laundering case.

Senior Advocate Kapil Sibal mentions the plea before the Bench headed by Chief Justice of India NV Ramana.

“This is regarding that extra enthusiasm of the ED milords!”, Kapil Sibal told the Supreme Court.

The Supreme Court said that it will hear the matter next week.

Abhishek Banerjee, the national general secretary of the Trinamool Congress, and his wife Rujira moved the Supreme Court to quash the summons sent by the Enforcement Directorate (ED) in the West Bengal coal scam under the Prevention of Money Laundering Act (PMLA).

Rujira Banerjee, in her petition, sought a stay on the summon order, as well as transfer in the case. It prayed to the Apex Court to allow her for questioning before ED in Kolkata in relation to the case.

The plea further sought a decision from the Supreme Court on whether the ED can call the whole of India to Delhi for questioning anywhere by its summons.

Besides, the plea has also challenged the Delhi High Court order of March 11, wherein the High Court had rejected his application against summoning by ED for questioning.

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On 27.11.2020, an FIR/RC was registered by the CBI ACB, Kolkata under Sections 120B and 409 of the Indian Penal Code, 1980 and Sections 13(2) read with Section 13(1)(a) of the Prevention of Corruption Act, 1988. The primary allegations in the RC were that illegal excavation and theft of coal were taking place in the leasehold areas of Eastern Coalfield Ltd. On 28.11.2020, ECIR was registered. Various Summons(es) were issued to Abhishek Banerjee and his wife Rujira Banerjee by the ED in relation to the ECIR on several occasions seeking their appearance in New Delhi along with voluminous documents.

Summons dated 18.08.2021 was issued seeking personal appearance of Abhishek Banerjee on 06.09.2021. Abhishek in compliance with the Summons, joined the investigation on 06.09.2021. After Abhishek  was examined by the respondent, a summon dated 06.09.2021 was issued seeking his personal appearance on 08.09.2021. Reply dated 08.09.2021 was sent by Abhishek stating that he had cooperated with the investigation conducted by the respondent and would continue to do so. Abhishek  further stated that he appeared before the respondent on 06.09.2021 and sought for four (4) weeks‟ time for the documents sought in the concerned summons. Abhishek also requested that the investigation be conducted in Kolkata or via video-conferencing as he is a permanent resident of Kolkata and the Respondent has a functional Zonal Office at Kolkata.

Summons dated 10.09.2021 were issued seeking the personal appearance of Abhishek. The Impugned Summons was served to Abhishek on 11.09.2021. However, Abhishek submits that the news about the Summons having been issued to Abhishek was put in public domain prior to the same being served to him. This, according to him, shows the mala-fide intentions of the Respondent.

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The Single-judge Justice Rajnish Bhatnagar   noted that the CrPC by way of Section 4 & Section 5 itself provides that in case a special law exists, such law will apply over and above the CrPC. Section 65 read with Section 71 of the PMLA further provides that while certain provisions of the CrPC may apply in case there exists no provision in the PMLA (Prevention of Money Laundering Act,. 2002) , in case of any inconsistency, contradiction or confusion arises, the provisions of the PMLA will prevail and override the provisions of the CrPC. It is otherwise also settled law that special law prevails over general law. The PMLA being a special criminal enactment providing for a separate investigative procedure and power, it is imperative that due meaning and regard is given to the provisions of the PMLA in its totality and the said provisions are allowed to operate in their full force on their own.

“To apply proviso to Section 160 CrPC concerning a woman to a summons issued under Section 50 of the PMLA would amount to curtailing the powers of the authorized officer under the PMLA, which extends to all persons and has not been statutory limited either on the basis of territory or on the basis of the gender of the person”.

It is further noted by the Court that  it is settled law that the legislature is aware of the statutes already enacted and when the PMLA was enacted in 2002, the Parliament was aware of the protection afforded to a woman under Section 160 CrPC. Despite being aware of the same, the Parliament while enacting a similar provision providing for compulsory attendance of persons, chose not to extend the same protection under the PMLA Act. At the same time wherever the Parliament thought it to be necessary it extended the protection to a woman under the PMLA, it has specifically provided so – as is in case of Section 45 of the PMLA. Therefore, on this point also, it is clear that there is an inconsistency between Section 50 of the PMLA and Section 160 of the CrPC and also there is a clear legislative intent behind not providing the protection in the nature of the proviso to Section 160 of the CrPC to a woman under Section 50 of the PMLA.

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With regard to the allegation of mala fide , the Court observed that the same is to be established to a specific assertion on the basis of proven facts and not on the basis of conjectures and surmises. The burden of establishing mala fide is very heavy on the person who alleges it and further often requires relevant persons against whom such allegations are made to be made parties to the petition so as to enable them to respond to such allegations.

“..so far as the allegations of mala fides are concerned, the same has no place in criminal investigations. Secondly, it is settled law that allegations of mala fides are easier to be made than to actually make out. The allegations of mala fides need to be corroborated with concise statements of material facts which inspire confidence. Thirdly, apart from non-applicability of such grounds in a criminal investigation, the PMLA and CrPC provides for enough and sufficient safeguard with checks and balances to obviate any such apprehension.”

Though the issue in the present two petitions pertain to applicability or otherwise of Section 160 of CrP Code, the question about applicability of Chapter XII itself is pending consideration in a batch of petitions before Supreme Court of India , the High Court however observed that  considering the very nature of the investigation under PMLA, this question needs to be examined and decided. “Considering the very nature of PMLA, a meaningful reading of section 4 and 5 of CrPC r/w section 65 and 71 of PMLA, it is evident that section 160 will have no application as the field is occupied by Section 50 of the PMLA.”

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The Court also dismissed a separate plea by Rujira Banerjee by which she had challenged the ED’s complaint with the Rouse Avenue court for her non-appearance and the Chief Metropolitan Magistrate’s (CMM) order taking cognisance of the same.

The Supreme Court on Friday permitted West Bengal Leader of Opposition in the Assembly Suvendu Adhikari and Secretary and The Returning Officer, West Bengal Legislative Assembly to withdraw their respective petitions and approach the Calcutta High Court.

The writ petition filed by Adhikari had been filed challenging the Assembly Speaker’s order of February 11, 2022 dismissing the application filed seeking disqualification of Mukul Roy from the West Bengal Legislative Assembly.

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The SLPs were preferred by the Secretary and The Returning Officer, West Bengal Legislative Assembly and the Speaker, West Bengal Legislative Assembly questioning an Order dated 28.09.2021 in Writ Petition preferred before the High Court, whereby the High Court directed the Speaker to place the order to be passed in the petition filed for disqualification of MLA Mukul Roy for defecting from the Bharatiya Janata Party to the ruling All India Trinamool Congress.

The Court Held:

“As the speaker has already decided the petition file for disqualification of Mr. Mukul Roy, the petitioner in W.P.(C) No. 117/2022 is permitted to withdraw this writ petition and approach the High Court under Article 226 of Constitution of India, as the said writ petition is intricately connected with the continuance of Mr. Mukul Roy as the Chairman of PAC. It is advisable that the said writ petition be listed with the writ petitions pending before the High Court. Needless to mention that the observations made by the High Court while passing the order dated 28.09.2021 are prima-facie and the parties are at liberty to take all contentions that are available to them in law. In view of the tenure of Mukul Roy as Chairman of PAC is only for a period of one year, we request the High Court to decide the pending writ petitions and the writ petition to be filed by the petitioner before the High Court expeditiously and not later than a period of 1 month.”

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Owing to Mukul Roy’s term as Chairman of PAC is due to expire in four months, the Apex Court directed the Calcutta High Court to deal with the matters expeditiously within a month.

By Sujit Bhar

The Trinamool Congress (TMC) is a party of diametrically opposite virtues. At one end, it showcases its almost iconic leader Mamata Banerjee, with a huge victory over the Bharatiya Janata Party (BJP), while at the other end, it can’t even spell Mamata’s so-called ‘Bengal model’ in fiscal terms. At one end, we see 12 of the 17 sitting Congress MLAs in Meghalaya switch sides to TMC, while at the other end, we see the very large Bengali speaking population of Agartala (capital of Tripura) completely reject Mamata, apparently because they saw nothing in that ‘Bengal model’ which would have helped them secure a better future.

TMC is a party which is in the news today, because it has, somehow, turned into this mega magnet for disgruntled Congress leaders and workers. People say it is Prashant Kishor’s doing, but without the presence of Mamata, that strategy would have meant zilch. Leaders have moved into the TMC fold in Goa, too, but Goa is a mirage and MP Mahua Moitra, in-charge of that state, will have a tough time explaining the rationale behind the Mamata ‘miracle.’

Others coming into TMC are those from the Janata Dal and even to an extent the BJP (this has been mostly restricted to West Bengal). So, has the TMC undergone any structural change, or has it recently shown grassroots promise in states other than West Bengal? Has there been any substantial change in the way Mamata Banerjee rules her party? Is Mamata Banerjee being looked upon as a future alternative to Prime Minister Narendra Modi? Or, more importantly, has Mamata been able to turn around the financial fortunes of West Bengal?

While the answer to all the above questions, as of now, is ‘NO’, it would be pertinent to look for a wider canvas to accommodate this apparent anomaly.

The general perception is that Congress, as the only national party with secular credentials, is dying a slow, painful death. And the only people to be blamed for that are its leadership. The TMC wants to fill that secular gap. It is a marathon and, judging by the current pace, 2024 cannot be a defining target. There is talk about 2029, but that is so far away at this moment that politically, it would possibly be a bad decision to wait for an evolutionary process to happen.

Growth has to be inorganic and the poaching of established leaders, as shown by the BJP, seems an easy alternative. Mamata’s nephew Abhishek Banerjee has surely settled down as the No. 2 in the party, but his organisational acumen has yet to be showcased beyond the boundaries of Bengal.

The Tripura municipal elections were a major setback for TMC – the BJP earned a landslide victory, winning 329 of the 334 seats – and Abhishek’s pre-poll exhortations were of no use. He had said: “We must fight and defeat BJP, otherwise the situation in Tripura would turn out to be similar to Afghanistan.” The All India Trinamool Congress (AITC) general secretary had also claimed that his party would form the government in Tripura in the 2023 state assembly elections.

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As of now, that seems a very long shot. What has come out in the final analyses is that TMC neither had the organisational set-up nor the financial muscle to match the BJP even at the municipal level. With the party’s coffers are at an all-time low – there aren’t many Bengal industries capable enough to provide the funding – the situation will not be any better by 2023. So what can change? A petty chest thumping of “ending BJP misrule” will not make hay.

Frankly, the TMC may be hoarding disparate leaders, but doesn’t have the wherewithal to effect a decent financing of their operations. Prashant Kishor may have outlined a political strategy, but somehow the state itself has to formulate a financial strategy to align with that. At the same time, there is huge concern growing within the state, vis-à-vis the economy. Jobs are scarce, the industrial fabric has been completely destroyed – every industry has to promise to pay TMC goons a sizable sum in protection money, resulting in huge erosion of profits. The state itself has little or no financial growth strategy in place, despite opportunities galore.

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Within this situation, merely banking on political goodwill, Mamata is striding across the country, ‘recruiting’ leaders and workers at random. Some of them may look promising, while others are surely of no use. The frenetic pace of the leaders of the TMC isn’t focused. They seem to be acting on an impulse (of Mamata) and believe that this will bear fruit.

Maybe that will happen, but Congress is not dead yet, and the BJP is as astute a political animal as any other. There will be huge hurdles in place and what will help the TMC overcome those to become a truly national party – not just on the strength of a 5-6% vote percentage – is presenting a economic and governance model that has worked before.  

West Bengal may be an ideal secular model for the critic, but a less than ideal financial model for the job aspirant. Mamata needs to come down to the basics; she needs to take care of her own state first. National aspirations can wait a little longer.

The Supreme Court has agreed to hear tomorrow a contempt plea moved by the All India Trinamool Congress seeking protection for its party workers from false cases and violence ahead of municipal elections in Tripura due on November 25 in view of worsening law and order every day. &

A bench led by Justice D.Y. Chandrachud and Justice A.S. Bopanna upon urgent mentioning agreed to hear and list the matter on November 23, 2021. 

The Top Court had on November 11 directed Tripura for making appropriate arrangements to ensure the maintenance of law and order in a manner that would further the unimpeded right of political participation in the course of the ensuing municipal elections. It had further directed to ensure that the process of election during the ensuing municipal elections in Tripura remains “free and fair”.

The plea was filed by All India Trinamool Congress (AITC) in the backdrop to the elections which are to take place to a Municipal Corporation, thirteen Municipal Councils and six Nagar Panchayats in the State of Tripura on November 25. The election process began on October 22.

“The first petitioner is the All India Trinamool Congress (AITC), while the second petitioner is a Member of the Rajya Sabha. The petitioners have tabulated in the Synopsis several incidents of violence which have taken place since 2 August 2021, aimed at the representatives of the first petitioner and members owing allegiance to the political party in the course of the election campaign. The petition adverts to an incident of violence which took place on 22 October 2021, when a team of AITC leaders and workers under the second petitioner were in the midst of a “Public Contact Program”. An FIR has been registered at Amtali Police Station for offences punishable under Sections 323, 427, 345 and 379 read with Section 34 of the Indian Penal Code 1860, but it has been stated that no arrest has been made in connection with either that case or the earlier criminal cases which were registered. As a consequence, it has been submitted, that though the election process has commenced, the representatives of the first petitioner have been prevented from free recourse to electoral campaigning as a result of actual and threatened violence. Annexure P-6 to the petition is a communication of the Superintendent of Police, West Tripura District, dated 18 September 2021, declining permission to the first petitioner to hold a meeting- cum-procession at Agartala city on the apprehension that supporters of opposing political parties may “try to commit mischief”, resulting in a similar riotous situation which was witnessed earlier on the day,” the Court had noted in its order dated November 11. 

The Supreme Court had issued notice and observed that since the election process has commenced, it is the bounden obligation of the respondents to ensure that no political party which is in the fray is prevented from pursuing its electoral rights in accordance with law and from campaigning in a peaceful and orderly manner. 

“Necessary arrangements shall be put into place and appropriate action taken by the Secretary to the Department of Home Affairs of the Government of Tripura as well as by the Director-General of Police, together with the law enforcement machinery of the State to enforce and comply with this order,” it had directed. 

The Apex Court had further directed the respondents, to make appropriate arrangements to ensure the maintenance of law and order in a manner that would further the unimpeded right of political participation in the course of the ensuing municipal elections.”

“As regards the plea for individual security, the concerned Superintendents of Police who are impleaded as respondents shall take a decision having regard to the threat perception with reference to each case and area and take necessary action for the maintenance and provision of security, as required,” said the Court. 

It directed, “An affidavit shall be filed by the first respondent explaining the steps being taken in pursuance of the present order and even otherwise to ensure that the process of election during the ensuing municipal elections in Tripura remains free and fair. The Director General of Police and the Home Secretary shall file a joint report of compliance, on affidavit, in pursuance of the above directions.”

The Delhi High Court on Friday adjourned its hearing on a petition filed by Trinamool Congress MP Abhishek Banerjee, the nephew of West Bengal Chief Minister Mamata Banerjee, and his wife Rujira Banerjee challenging the summons issued to them by the Enforcement Directorate in a case of alleged money laundering in the West Bengal coal scam.

A single-judge bench of Justice Yogesh Khanna was hearing the submissions of Senior Advocate Sidhartha Agarwal, who was appearing for the petitioners, and Additional Solicitor General S.V. Raju appearing for the ED.

The Court refused to grant interim protection to the petitioners as sought by Senior Advocate Kapil Sibal.

Senior Advocate Sidhartha Agarwal, who was supplementing arguments of Kapil Sibal for Abhishek Banerjee, submitted an ED officer has the power to arrest under Section 19 of PMLA, he need not rely on CrPC to find these powers. He added CrPC provides certain protections to the people being arrested, no one can state arrestees don’t have those protections, under PMLA.

He further submitted there are no provisions in PMLA granting the ED custody of an accused, more so once such an arrest is made, there is no provision for length of custody in PMLA, Section 167 CrPC is relied on, for the same.

Senior Advocate Agarwal stated that if an offence is committed, it will be in purview of CrPC by the virtue of Section 4 CrPC, unless is statutorily barred, to enhance this point made he relied upon Directorate Of Enforcement vs Deepak Mahajan, 1994 AIR 1775:

“To sum up, Section 4 is comprehensive and that Section 5 is not in derogation of Section 4(2) and it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of this Code would be applicable to the extent in the absence of any contrary provision in the special Act or any special provision excluding the jurisdiction or applicability of the Code. In fact, the second limb of Section 4(2) itself limits he application of the provisions of the Code reading……. but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.”

Senior Advocate Agarwal went on to read Section 65 of PMLA to state, PMLA will apply, but where PMLA is silent, CrPC will apply. Section 65 of PMLA says: “Code of Criminal Procedure, 1973 to apply.—The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.”

Countering the argument of ED that there is no territoriality in PMLA, Senior Advocate Agarwal invited the court’s attention Section 16 of PMLA. Section 16 (1) (i) of PMLA says: Notwithstanding anything contained in any other provisions of this Act, where an authority, on the basis of material in his possession, has reason to believe (the reasons for such belief to be recorded in writing) that an offence under section 3 has been committed, he may enter any place—

(i) within the limits of the area assigned to him
Relying on Section 16 of PMLA he stated, it is a clear mandate that ED is not above territoriality.

For the ED, ASG S.V. Raju submitted Section 160 of CrPC does not apply to PMLA, as in this case there is inherent conflict between Section 50 of PMLA and Section 160 of CrPC. He added, there is an omission in Section 50 of PMLA of the provisions mentioned in Section 160 of CrPC and the omission amounts to contradiction.

He further submitted, the legislature was aware of the territorial limitation envisaged in Section 160 of CrPC and deliberately chose to omit these, in Section 50 PMLA, furthermore, there is a deliberate departure, as in Section 50 PMLA the powers conferred on the IO are under CPC and not CrPC.

ASG S.V Raju brought the courts attention to Section 13 (2):

“If the Director, in the course of any inquiry, finds that a banking company, financial institution or an intermediary or any of its officers has failed to comply with the provisions contained in section 12, then, without prejudice to any other action that may be taken under any other provisions of this Act, he may, by an order, levy a fine on such banking company or financial institution or intermediary which shall not be less than ten thousand rupees but may extend to one lakh rupees for each failure.”

He further contended that power under 160 CrPC is conferred upon an IO, whereas powers under Section 50 of PMLA are conferred upon a Director, Additional Director, Joint Director, Deputy Director and Assistant Director.

Abhishek Banerjee had been summoned by the ED for the third time on September 21. He has previously responded to the first summon and was quizzed for nine hours on September 6 in New Delhi. He could not respond to the second summon as only a one-day notice was issued to him.

At the outset, CBI, Kolkata, registered a First Information Report in November last year, on the allegations that an illegal coal pilferage was taking place at the Eastern Coalfield Ltd. mines, in the areas of West Bengal. Upon investigation into the matter, it was revealed that the Abhishek Banerjee along with West Bengal PWD & Law Minister Moloy Ghatak, had received kick-backs from funds obtained in the alleg ed illegal mining scandal.

The petition, filed by Abhishek Banerjee, further sought, directions to ED, not to issue summons to the Petitioners for their appearance and thereby not compelling the Petitioners to join the investigation in the West Bengal Coal Scam case.

The petition avers that Banerjee and his wife have neither been named in the CBI FIR, nor in the complain filed by ED under Section 45 of the PMLA. Furthermore, the petition avers that Head Investigative Unit of ED has no jurisdiction, to assume investigative powers in respect of allegations of money laundering arising in respect of the scheduled offence,as the same could only have been investigated into by the concerned zonal office at Kolkata.

The matter has been listed for further hearing on October 6.

The Calcutta High Court on Tuesday directed the Speaker of the West Bengal Legislative Assembly to decide on the disqualification petition moved by BJP MLA Suvendu Adhikari on an urgent basis.

During the hearing of a petition moved by BJP MLA Ambika Roy, challenging the appointment of Mukul Roy as the Chairman of the Public Accounts Committee (PAC) of the West Bengal Legislative Assembly, a Bench comprising Acting Chief Justice Rajesh Bindal and Justice Rajarshi Bharadwaj observed that it is the duty of the Court to protect the Constitution and its values and the principles of democracy, which has been held to be a basic structure of the Constitution.

C.S. Vaidyanathan, Senior Counsel appearing for the petitioner, submitted that Mukul Roy was elected as a member of the State Legislative Assembly on a BJP ticket. The result of the Assembly Election was declared on May 2, 2021. On June 11, Mukul defected from BJP to All India Trinamool Congress (AITC).

On June 17, a petition was filed by Suvendu Adhikari seeking disqualification of Mukul from the Assembly. On June 24, 20 MLAs including Mukul were elected as members of the Committee on Public Accounts. On July 9, the Speaker nominated Mukul as the Chairman of the Public Accounts Committee, treating him to be MLA belonging to BJP, though he had already defected to AITC. It was against the convention admitted by the Speaker himself in the order passed by him.

Vaidyanathan further submitted that the Committee on Public Accounts is constituted for one year and the idea of the respondents is to let the present petition become infructuous. Firstly, the Speaker is not deciding the petition pending before him alleging defection of Roy from BJP to AITC, which in terms of judgment of  the Supreme Court in Keisham Meghachandra Singh vs Speaker Manipur Legislative Assembly and Others, (2020) SCC OnLine SC 55 is to be decided within a reasonable period which has been held to be maximum three months.

Kishore Datta, Advocate General, appearing for the state  submitted that though the petitioner has tried to use the word constitutional convention in his arguments but the same is not borne out even from the order passed by the Speaker nominating Mukul Roy as the Chairman of the Committee on Public Accounts. He merely used the term ‘convention’. The same cannot be taken to be a constitutional convention. As the names of the Chairman of various committees including the Committee on Public Accounts were declared by the Speaker on the floor of the House during the proceedings of the Assembly, the bar under Article 212 of the Constitution of India applies for any interference by the Court. As the petitioner is an interested party to the litigation, a petition filed in public interest will not be maintainable. At the most he can bring motion in the Assembly.

Anindya Kumar Mitra, Senior Advocate appearing for Mukul Roy contended that it is misconceived to argue that any practice for a short duration can be treated as a constitutional convention. Even an admission made by a Speaker on that account cannot be considered to be a constitutional convention. It cannot be created by one person in the state. Even if seen from the pleadings of the petitioner, intermittently there had been Chairman of the Committee on Public Accounts belonging to the opposition party however, it was not a regular practice. Constitutional convention cannot be limited to a state. In any case any admission made by the Speaker will not be binding on Mukul Roy.

Counsel for Roy further added that even in the objections filed by the petitioner to the nomination of Mukul Roy as member of the Committee on Public Accounts no such plea was raised. The Constitution of Committee is for a period of one year. It is not provided in the Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly that nomination has to be proposed and seconded by the member of the same party. Some credence has to be given to the Rules of Business framed in exercise of powers conferred under Article 208 of the Constitution of India. It is not provided in the Rules of Business that the Chairman of the Committee on Public Accounts has to be of any opposition party. It is easy to plead but difficult to prove a constitutional convention. How the same is to be established has been well laid down in judgment of  the Supreme Court in Supreme Court Advocates-on-Record Association’s (1993) case (supra) and K. Lakshminarayanan v. Union of India, (2020) 14 SCC 664. Any convention in a state cannot be termed as constitutional convention.

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In response, Vaidyanathan,  Senior Counsel appearing for the petitioners submitted that there is no response by either of the respondents that Mukul Roy had left the BJP party and joined AITC. That is the basic fact on which all other issues regarding convention are dependent. It is the fact admitted by the speaker himself in the order. Hence, no explanation given by either of the parties can be accepted.

Analysis of the Court

I – Regarding Disqualification Petition- 
The Bench held that issues raised in the petition could very well be sorted out in case the Speaker had decided the petition pending before him for disqualification of Mukul Roy  from the Assembly, expeditiously. The objective and purpose of the Tenth Schedule is to curb the evil of political defections motivated by the lure of office, which endangers the foundation of our democracy. The disqualification takes place from the date when the act of defection took place. The constitutional authorities who have been conferred with various powers are in fact coupled with duties and responsibilities to maintain the constitutional values. In case they fail to discharge their duties within time, it will endanger the democratic set up. Even for the decision of the petitions filed for disqualification of a member by the Speaker, the Courts have to intervene and specify the timeline. A Speaker in discharge of his constitutional duties is expected to be neutral. The power of the Speaker to adjudicate upon an application filed for disqualification of a member of Assembly has been held to be quasi-judicial in nature, which is subject to judicial review by the Courts.

II – Rules of Procedure and Conduct of Business in the West Bengal Legislative Assembly, Constitution of Committees and Importance Thereof-

“A perusal of the various Rules of Business with reference to the working of the Committees and the work to be discharged by them and the powers conferred on them clearly establish the importance thereof.  The Supreme Court has opined that the Committees constituted by the legislative bodies perform a key role in the functioning and working of the Houses as there is more reasonable and applied discussion in these Committees. Effective working of the Committees is a prelude to the core working of the Assemblies. The Committees are in fact an extension of the legislature itself and do informed work. These Committees consist of Members of the Assembly having affiliation to different parties. It is a participative process in the democratic set up. The importance of the Committee on Public Accounts is evident from the fact that Rule 302 of the Rules of Business provides for proportional representation. The Chairperson has to be appointed by the Speaker. It is not the power to be exercised by the Assembly. The Assembly proceedings are in the term of some formal action or decision taken by the House in its collective capacity. Debate is an intrinsic part of that process. Even if in the present case the declaration of the names of the Members of the Chairpersons of the Committees was made in the Assembly, this cannot be termed to be proceedings in the Assembly as it was merely a declaration made by the Speaker in the presence of all the Members. It was not subject matter of discussion amongst the Members in the Assembly. There may be some Committees constituted by the State Assemblies or the Parliament but the case in hand is different”,

-the Court observed .

III – Constitutional Convention

As in the case in hand all the three ingredients, which are required to accept the convention as noticed by the Speaker in the declaration made by him as a constitutional convention, are available the same can very well be treated as constitutional convention. This is in addition to the fact that the same is the admitted case of the Speaker himself in the declaration made. He cannot come out of the admission made by him. The same is also keeping in view the healthy democratic set up and maintaining the constitutional values. It is only after the action was challenged in Court that the respondents have come up with different pleas to come out of the declaration made by the Speaker at the time of nomination of the Chairman of the Committee.

IV – Judicial Review

The Court said that it is not a case of procedural irregularities, which could debar this Court from entertaining the petition in terms of Article 212(1) of the Constitution of India. It is a case of blatant illegality. Firstly, the Speaker was required to decide the petition filed before him for disqualification of Mukul Roy  having defected from BJP to AITC, as a result of which his membership to the Assembly itself was in doubt. In case Mukul Roy  does not remain the Member of the Assembly, there was no question of him being even the Member of the Committee what to talk of its Chairman. Further, the established constitutional convention which even as per the declaration made by the Speaker at the time of appointment of the Chairman of the Committee was also violated.

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V – Quo-Warranto

Once the Office of Chairman of the Committee on Public Accounts is found to be a public office, a writ of quo-warranto will certainly be maintainable, in case he has found to be usurping the same. In the case in hand, there are two reasons on which this Court can exercise that power. Firstly is the constitutional convention, which stands established and further it is the admitted case of the respondents themselves that one of the eligibility conditions to be a Member or the Chairperson of the Committee, is to be a Member of the Legislative Assembly. In the case in hand, the allegation of the petitioner is that Mukul Roy  had defected from BJP to AITC.

The Court noted that a petition for disqualification was pending before the Speaker before he was even nominated as the Chairman of the Committee on Public Accounts. The disqualification is from the date when the act of defection took place. Failure on the part of the Speaker to adjudicate upon that petition despite the maximum period provided therefore having expired, is creating more trouble as a result of which the interference of this Court has been called for. In fact, the respondent No. 1 should have first decided the petition for disqualification of the respondent No. 2 and thereafter, considering his eligibility, should have taken steps to appoint him as the Chairman of the Committee on Public Accounts.

VI – Maintainability of PIL

The High Court analysed that maintainability of PIL in the present case will not be an issue as constitutional issues have been raised by the petitioner.